What Is an Affidavit of Non-Prosecution (ANP) and How Does It Affect a Criminal Case?

Many Collin County criminal cases start with someone contacting the police and filing a report. This is a common occurrence in family violence cases–someone tells the police their partner assaulted them. After some time has passed, however, the accuser may not wish to go forward with criminal prosecution. Maybe the person made up the whole thing, or perhaps they simply want to put the incident “behind them” and avoid testifying at a public trial.

There is a misconception among many people that an accuser can simply “drop the charges,” thereby ending the criminal case against the defendant. But that is not how the criminal justice system operates. In a civil case, a plaintiff may voluntarily dismiss his or her lawsuit against the defendant. In contrast, a criminal case is handled by the District Attorney, not the accuser, as the legal representative of the State of Texas. This means that once a case is in the system, it is ultimately up to the DA to decide whether or not to proceed.

Obviously, a DA’s job is more difficult if the accuser no longer wishes to cooperate. Prosecutors will certainly take the accuser’s wishes into account, but they are not legally bound by them. If the DA decides to proceed with the case, he or she can still compel the accuser to testify in court by issuing a subpoena. And as with any witness, if the accuser tries to ignore the subpoena, the court may issue an arrest warrant and cite the person for contempt of court.

That said, the accuser may try to avoid the need for testifying by filing a document known as an “affidavit of non-prosecution” (ANP). An affidavit in Texas is basically a written document sworn before a notary that states certain facts and attests to their truthfulness under oath–i.e., under penalty of perjury. While the precise form will vary based on the case, an ANP essentially states that the accuser does not wish to pursue charges against the defendant and presents any additional facts or circumstances the District Attorney and the judge should be aware of before proceeding any further with prosecution. The ANP should also make it clear the accuser understands she may still be compelled to testify in court, and that she is signing the affidavit voluntarily and not under coercion, threat, or promise of any future consideration.

This last point is critical. The defendant must not take any action in order to secure an ANP. It must be the accuser’s free and voluntary action. And in many family violence cases, a defendant who attempts to contact the accuser about an ANP may also violate a standing order of protection. So, under no circumstances should a defendant ever try to pressure or lobby their accuser into making a statement renouncing their previous allegations.

If you are a defendant facing a false accusation or an accusing witness looking to avoid a trial, contact the criminal lawyers in Collin County at Rosenthal & Wadas, PLLC, today if you need immediate legal advice or assistance.

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